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OF
UTOPIA
ARIS S. MANGUERA
b.
Article XI
ACCOUNTABILITY OF PUBLIC
OFFICERS
I. STATEMENT OF POLICY (Section 1)
II. IMPEACHMENT (Sections 2 & 3)
III. SANDIGANBAYAN (Section 4)
IV. OMBUDSMAN (Section 5,6,8-14)
V. SPECIAL PROSECUTOR (Section 7)
VI. ILL-GOTTEN WEALTH (Section 15)
VII. RESTRICTION ON LOANS(Section 16)
VIII.TRANSPARENCY RULE (Section 17)
IX. ALLEGIANCE TO THE STATE AND THE
CONSTITUTION (Section 18)
c.
B. Public Officer
A person who holds a public office.683
C. Public Office as Public Trust
Q: What is meant by public office is a public trust?
A: The basic idea of government in the Philippines is that
of a representative government the officers being mere
agents and not rulers of the people where every officer
accepts office pursuant to the provisions of law and holds
the office as a trust for the people whom he represents.
(Justice Malcom in Cornejo v. Gabriel, 41 Phil 188,
1920)684
I. Statement of Policy
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest
lives.
A. Public Office
1. Definition
The right, authority or duty, created and conferred
by law, by which for a given period, either fixed by
law or enduring at the pleasure of the creating
power, an individual is invested with some
sovereign power of government to be exercised by
him for the benefit of the public. (Fernandez v. Sto.
Tomas, 1995)
2. Elements
1. Created by law or by authority of law;
2. Possess a delegation of a portion of the
sovereign powers of government, to be
exercised for the benefit of the public;
3. Powers conferred and duties imposed
must be defined, directly or impliedly, by
the legislature or by legislative authority;
4. Duties must be performed independently
and without the control of a superior
power other than the law, unless they be
those of an inferior or subordinate office
created or authorized by the legislature,
and by it placed under the general control
of a superior office or body; and
5. Must have permanence of continuity.681
3. Creation
Public officers are created:
a. By the Constitution
681
II. Impeachment
Section 2. The President, the Vice-President, the Members
of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from
office on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from
office as provided by law, but not by impeachment.
Section 3. (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen
upon a resolution or endorsement by any Member thereof,
which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such
referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
682
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Indorsement from Hon. Raul Gonzalez, A.M. No. 88-45433)
C. Grounds
1. Culpable Violation of the Constitution
2. Treason, Bribery and Graft and Corruption
3. Other High Crimes or
4. Betrayal of Public Trust
Note: The enumeration is exclusive.
(6) The Senate shall have the sole power to try and decide
all cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not vote. No
person shall be convicted without the concurrence of twothirds of all the Members of the Senate.
Treason
Treason is committed by any person who, owing
allegiance to the Government of the Philippines,
levies war against it or adheres to its enemies,
giving them aid and comfort. (RPC, Article 114)
A. Definition of Impeachment
A national inquest into the conduct of public men.686
Bribery
Bribery is committed by any public officer who shall
agree to perform an ac, whether or not constituting
crime, or refrain from doing an act which he is
officially required to do in connection with the
performance of his official duties, in consideration
for any offer, promise, gift or present received by
him personally or through the mediation of another,
or who shall accept gifts offered to him by reason
of his office. 9RPC, Arts. 210-211)
B. Purpose of Impeachment
The purpose of impeachment is not to punish but
only to remove an officer who does not deserve to
hold office.687
C. Impeachable Officers
1.
2.
3.
4.
5.
President
Vice-President
Chief Justice and Associate Justice of the
Supreme Court
Chairmen and members of the Constitutional
Commissions
Ombudsman
689
690
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conviction must be concurred in by at least twothirds of all the members of the Senate.
4. Penalty
The penalty which may be imposed shall not
extend further than removal from office and
disqualification to hold any office under the
Republic.694
D. Procedure
Congress shall promulgate its rules on
impeachment to effectively carry out the purpose.
(Section 3(8))
1. Initiation
The proceeding is initiated or begins, when a
verified
complaint
(with
accompanying
resolution or indorsement) is filed and referred
to the Committee on Justice for action. This is
the initiating step which triggers the series of steps
that follow. (Fransisco v. House Speaker, 2003)
2. Limitation on initiating of impeachment case
The Constitution prohibits the initiation of more
than one impeachment proceeding within one
year.
In Fransico v. House of Representatives, the SC
said that considering that the first impeachment
complaint was filed by former President Estrada
against Chief Justice Davide along with seven
associate justices on June 02, 2003 and referred to
the House Committee on Justice on August 05,
2003, the second impeachment complaint filed by
some Rep. Teodoro et. al., against the Chief Justice
on October 23, 2003, violates the constitutional
prohibition against the initiation of impeachment
proceedings against the same impeachable officer
within a one-year period.
3. Trial
The Senate shall have the sole power to try and
decide all cases of impeachment. When sitting for
that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines
is on trial, the Chief Justice of the Supreme Court
shall preside, but shall not vote. A decision of
691
692
693
6. Judicial Review
III. Sandiganbayan
Section 4. The present anti-graft court known as the
Sandiganbayan shall continue to function and exercise its
jurisdiction as now or hereafter may be provided by law.
A. Composition of Sandiganbayan
Under PD 1606, it is composed of a Presiding
Justice and Eight Associate Justices, with the rank
of Justice of the Court of Appeals. It sits in three [3]
divisions of three members of each.
B. Nature of Sandiganbayan
Sandiganbayan is NOT a constitutional court. It is
a statutory court; that is, it is created not only by
the Constitution but by statute, although its creation
is mandated by the Constitution.696
C. Jurisdiction of Sandiganbayan
Original Jurisdiction
694
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Private persons may be charged together with
public officers to avoid repeated and unnecessary
presentation of witnesses and exhibits against
conspirators in different venues, especially of the
issues involved are the same. It follows therefore
that if a private person may be tried jointly with
public officers, he may also be convicted jointly
with them, as in the case of the present
petitioners. (Balmadrid v. The Honorable
Sandiganbayan, 1991)
Macalino v. Sandiganbaya, 2002: It was held that
because the Philippine National Construction
Company (PNCC0 has no illegal charter, petitioner,
an officer of PNCC, is not a public officer. That
being so, the Sandiganbayan has no jurisdiction
over him. The only instance when the
Sandiganbayan may exercise jurisdiction over a
private individual is when the complaint charges
him either as a co-principal, accomplice or
accessory of a public officer who has been charged
within the jurisdiction of the Sandiganbayan.
Determination of Jurisdiction. Whether or not the
Sandiganbayan or the RTC has jurisdiction over
the case shall be determined by the allegations in
the information specifically on whether or not the
acts complained of were committed in relation to
the official functions of the accused. It is required
that the charge be set forth with particularity as will
reasonably indicate that the exact offense which
the accused is alleged to have committed is one in
relation to his office. Thus, the mere allegation in
the information that the offense was committed by
the accused public officer in relation to his office
is a conclusion of law, not a factual averment that
would show the close intimacy between the offense
charged and the discharge of the accuseds official
duties. (Lacson v. Executive Secretary)
Binay v. Sandiganbayan, 1999: The Supreme
Court discussed the ramifications of Section 7, RA
8249, as follows:
1. If trial of the cases pending before whatever
court has already begun as of the approval of
RA 8249, the law does not apply;
2. If trial of cases pending before whatever court
has not begun as of the approval of RA 8249,
then the law applies, and the rules are:
i.
If the Sandiganbayan has jurisdiction
over a case pending before it, then it
retains jurisdiction;
ii.
If the Sandiganbayan has no
jurisdiction over a cased pending
before it, the case shall be referred to
the regular courts;
iii.
If the Sandiganbayan has jurisdiction
over a case pending before a regular
court, the latter loses jurisdiction and
the same shall be referred to the
Sandiganbayan;
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iv.
D. Decisions/Review
The unanimous vote of all the three members shall
be required for the pronouncement of judgment by
a division. Decisions of the Sandiganbayan shall
be reviewable by the Supreme Court on a petition
for certiorari.
a. It is now settled that Section 13, RA 3019,
makes
it
mandatory
for
the
Snadiganbayan to suspend any public
officer against whom a valid information
charging violation of that law, or any
offense involving fraud upon the
government or public funds or property is
filed. (Bolastig v. Sandiganbayan, 235
SCRA 103)
b. The appellate jurisdiction of the Supreme
Court over decisions and final orders of
the Sandiganbayan is limited to questions
of law. (Republic v. Sandiganbayan, 2002)
IV. Ombudsman
Section 5. There is hereby created the independent Office
of the Ombudsman, composed of the Ombudsman to be
known as Tanodbayan, one overall Deputy and at least one
Deputy each for Luzon, Visayas, and Mindanao. A separate
Deputy for the military establishment may likewise be
appointed.
ARIS S. MANGUERA
nominees prepared by the Judicial and Bar Council, and
from a list of three nominees for every vacancy thereafter.
Such appointments shall require no confirmation. All
vacancies shall be filled within three months after they
occur.
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During their tenure:
A. Composition
E. Jurisdiction
How is the jurisdiction of the Ombudsman over
a person determined? For purposes of
determining the scope of the jurisdiction of the
Ombudsman, a public officer is one to whom some
of the sovereign functions of the government has
been delegated.
(The National Centennial Commission performs
executive power which is generally defined as the
power to enforce and administer laws. It is the
power of carrying the laws into practical operation
and enforcing their due observance. The executive
function, therefore, concerns the implementation of
the policies as set forth by law. Laurel v. Desierto,
2002)
B. Qualifications
The Ombudsman and his Deputies must be:
1. Natural Born Citizens of the Philippines
2. At least 40 years of age
3. Of recognized probity and independence
4. Members of the Philippine Bar
5. Must not have been candidates for any
elective office in the immediately preceding
election.
The Ombudsman must have been a judge or
engaged in the practice of law for ten years or
more.
C. Appointment
By the President from a list of at least six nominees
prepared by the Judicial and Bar Council, and from
a list of at least three nominees for every vacancy
thereafter. All vacancies to be filled in three
months.
a. Term of Office: Seen years without
reappointment
b. Rank and Salary: The Ombudsman and
his Deputies shall have the rank of
Chairman and Members, respectively, of
the Constitutional Commissions, and they
shall receive the same salary which shall
not be decreased during his term of office.
c. Fiscal Autonomy: The Office of the
Ombudsman shall enjoy fiscal autonomy.
D. Disqualifications/Inhibitions
697
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to the Ombudsman the power to authorize the filing
of informations. A delegated authority to prosecute
was also given to the Deputy Ombudsman, but no
such delegation exists to the Special Prosecutor.
Nor is there an implied delegation. The Special
Prosecutor prosecutes only when authorized by the
Ombudsman.702
2.
The jurisdiction of the Ombudsman over
disciplinary cases involving public school teachers
has been modified by Section 9 of R.A. 4670,
otherwise known as the Magna Carta for Public
School Teachers, which says that such cases must
first go to a committee appointed by the Secretary of
Education.698
It is erroneous, thus, for respondents to contend that
R.A. No. 4670 confers an exclusive disciplinary
authority on the DECS over public school teachers
and prescribes an exclusive procedure in
administrative investigations involving them. R.A.
No. 4670 was approved on June 18, 1966. On the
other hand, the 1987 Constitution was ratified by the
people in a plebiscite in 1987 while R.A. No. 6770
was enacted on November 17, 1989. It is basic that
the 1987 Constitution should not be restricted in its
meaning by a law of earlier enactment. The 1987
Constitution and R.A. No. 6770 were quite explicit in
conferring authority on the Ombudsman to act on
complaints against all public officials and
employees, with the exception of officials who may
be removed only by impeachment or over members
of Congress and the Judiciary.
5.
The Ombudsman has been conferred rule
making power to govern procedures under it. 703 One
who is answering an administrative complaint filed
before the Ombudsman may not appeal to the
procedural rules under the Civil Service
Commission.704
6. The power to investigate or conduct a preliminary
investigation on any Ombudsman case may be
exercised by an investigator or prosecutor of the
Office of the Ombudsman, or by any Provincial or
City Prosecutor or their assistance, either in their
regular capacities or as deputized Ombudsman
prosecutors.705
7. A preventive suspension will only last ninety (90)
days, not the entire duration of the criminal case like
petitioners seem to think. Indeed, it would be
constitutionally proscribed if the suspension were to
be of an indefinite duration or for an unreasonable
length of time. The Court has thus laid down the
rule that preventive suspension may not exceed the
maximum period of ninety (90) days, in consonance
with Presidential Decree No. 807, now Section 52 of
the Administrative Code of 1987.706
3.
The Ombudsman Act authorizes the
Ombudsman to impose penalties in administrative
cases.699 Section 21 of RA 6770 vests in the
Ombudsman disciplinary authority over all
elective and appointive officials
of the
Government,
except
impeachable
officers,
members of Congress, and the Judiciary. And
under Section 25 of RA 6770, the Ombudsman may
impose in administrative proceedings the penalty
ranging from suspension without pay for one
year to dismissal with forfeiture of benefits or a fine
ranging from five thousand pesos (P5,000.00) to
twice the amount malversed, illegally taken or lost,
or both at the discretion of the Ombudsman x x
x. Clearly, under RA 6770 the Ombudsman has the
power to impose directly administrative penalty on
public officials or employees.700
Note, however, that according to the Local
Government Code, elective officials may be
dismissed only by the proper court. Where the
disciplining authority is given only the power to
suspend and not the power to remove, it should not
be permitted to manipulate the law by usurping the
power to remove.701
4.
The Special Prosecutor may not file an
information without authority from the Ombudsman.
Republic Act No. 6770, by conferring upon the
Ombudsman the power to prosecute, likewise grants
698
Q:
RA 6770 empowers the Office of the
Ombudsman to conduct preliminary investigations
and to directly undertake criminal prosecutions.
What is the constitutional basis for this power?
A: Article XI, Section 13(8) means that the
Ombudsman may be validly empowered with
prosecutorial functions by the legislature, and this
the latter did when it passed RA 6770. (Camanag v.
Guerrero, 1997)
Q: RA 6770 empowers the Office of the
Ombudsman to conduct preliminary investigations
and to directly undertake criminal prosecutions.
Does it not violate the principle of separation of
powers since the power to conduct preliminary
investigation is exclusive to the executive branch?
A: If it is authorized by the Constitution it cannot be
logically argued that such power or the exercise
thereof is unconstitutional or violative of the
702
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F. Power to Investigate
The power to investigate, including preliminary
investigation, belongs to the Ombudsman and not
to the Special Prosecutor. (Acop v. Ombudsman,
1995)
709
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V. Special Prosecutor
Section 7. The existing Tanodbayan shall hereafter be
known as the Office of the Special Prosecutor. It shall
continue to function and exercise its powers as now or
hereafter may be provided by law, except those conferred
on the Office of the Ombudsman created under this
Constitution.
710
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President, the Members of the Cabinet, the Congress, the
Supreme Court, and the Constitutional Commissions, the
Ombudsman, or to any firm or entity in which they have
controlling interest, during their tenure.
1.
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2.
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215